Home/Supreme Court of Iowa/Stinson v. Fishel

Stinson v. Fishel

61 N.W. 1063, 93 Iowa 656
CourtSupreme Court of Iowa
DecidedFebruary 1, 1895
StatusPublished
Cited by7 cases

This text of 61 N.W. 1063 (Stinson v. Fishel) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stinson v. Fishel, 61 N.W. 1063, 93 Iowa 656 (iowa 1895).

Opinion

Kinne, J.

I. Plaintiff owns certain real estate lying south of a public highway. Defendant ownsJand [657]*657which adjoins the highway immediately north of plaintiff’s land. Plaintiff charges that in May, 1892, defendant, without authority therefor, or permission of plaintiff, dug open ditches upon his land, whereby the surface water and drainage of a large area of land was collected together into one ditch, thereby changing its flow, and the manner and volume of its flow, from what it originally was, and discharging the same into the highway, from whence it flowed on to plaintiff’s land, to her damage. The answer denies that by any ditch. or ditches defendant changed the flow of water which' flowed over the highway on to plaintiff’s land; that he in no way changed the-natural flow or course of the water, and only collected the surface water on his own land into .shallow ditches^ to prevent the same from spreading over the entire surface, which surface water only was discharged Where it would naturally flow and accumulate before flowing upon plaintiff’s land; that the water which accumulated upon defendant’s land and flowed in said shallow ditches was water which fell from heavy and unusual rains., and which would have flowed over plaintiff’s land in the same manner had said ditches not been dug; denies that plaintiff has sustained damages. Defendant, in an amendment, avers that if plaintiff has been damaged by reason of water which defendant caused to flow through ditches, shie ■could have largely, if not .entirely, prevented such damage by running a furrow, with a plow, upon her land, at a trifling expense. By way of cross petition defendant avers that his land lies, higher than plaintiff’s, and the surface water caused by rains and snow upon defendant’s land passes upon plaintiff’s land down a natural swale; that said water has cut and formed a ditch down said swale upon plaintiff’s land, which receives the water from a portion of defendant’s land; that .in 1871 said ditch was enlarged by a former owner [658]*658of said land; that plaintiff obstructed said ditdh. in th!e fall of 1892, so as to interfere with the natural flow of surface water from defendant’s land, causing the same to back up and stand in pools in the highway, and threatens to so obstruct said ditch as to cause said surface water to flow back into the ditches cut upon defendant’s land, thereby causing his land to become wet, and unfit for cultivation, to his damage. Both parties pray for an injunction. Plaintiff, in a reply, denied tibe material averments of defendant’s cross petition. March 9, 1893, plaintiff withdrew her claim for damages, and the cause was submitted to the court. The issues were found for the plaintiff, and a decree entered enjoining defendant from -maintaining or keeping open the ditches heretofore referred to-, or any ditches or drains whereby the wlater collecting or standing upon Ms land shall be gathered in one stream, and discharged upon the plaintiff’s land, or on the highway, from wMch it can flow unobstructed upon plaintiff’s land, in a manner different or in greater quantities than it did prior to- May, 1892; also- ordering def endant to fill the ditches. Defendant’s cross petition was dismissed. From this action of the court, defendant appeals'.

II. WMle, in some particulars, the evidence is conflicting, we think the following facts are established: Plaintiff and defendant own adjoiMng farms: They are separated by a Mghway running east and west Defendant’s land lies from the center of the Mghway north, and plaintiff’s land lies from the center of the Mghway south. This Mghway was laid out a year prior to the commencement of this action, and prior to the digging of the ditches complained of. The defendant’s land lies Mgher than plaintiff’s, and there is a general slope to the southeast. There is a swale [659]*659beading west of defendamt’s west line tbat runs southeast, which, as it nears the highway, becomes depressed, so that it becomes a small pond or basin from ten to fifteen feet wide and a few inches deep. Prior to the digging of the ditches complained of, and when it rained hard, the water would flow naturally down the swale, over the rim of this basin or pond, and spread out over plaintiff’s land. The water thus discharged upon plaintiff’s land was the surface water and drainage from several acres of land of defendant. The water thus discharged on to plaintiff’s land, prior to the digging of the ditches, did not pass upon the same in a regular channel, .but spread out over plaintiff’s ground. The following plat will show the location of the ditches, the highway, and the land of the parties:

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Bluebook (online)
61 N.W. 1063, 93 Iowa 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinson-v-fishel-iowa-1895.